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The Study On Legal System In Analytical Positivist School Of Law

Posted on:2009-07-02Degree:MasterType:Thesis
Country:ChinaCandidate:L F WangFull Text:PDF
GTID:2166360242981748Subject:Legal theory
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In the study on Modern legal theory, the concept of the legal system and theoretical doctrine has been the focus of the study ,also is the basic law research areas. I believe that the legal system which includes two models, one of our most common model in the textbooks, that is, ontology research, mainly on what is the legal system, in accordance with the adjustment of the targets and methods on different laws Categories to study the legal system, that is, departments law systems. Another is the model of Analysis Positivist, that is, through the whole of the law as a basic unit, through research the link of basic units to understand the nature of the law, in a sense, was more inclined in the legal system on epistemology. Epistemology of the legal system primarily is through the analysis of the basic unit and the structure of the basic units to understand the law, that is, through the analysis of the structure of the law to better understand the nature of the law. This paper is precisely this analytical framework, that is, through the different of the basic unit and the structure of legal system between them to illustrate the different of the law, it also shows that the legal system in Analytical Positivist is an epistemology of the concept or Analysis of the concept. At the same time this is also on the establishment of such an intuitive, that is, the legal system theory in Analytical Positivist is a gradual process of development. In short, this article is a theoretical carding, combing through research and comparison to understand that the concept is a concept of epistemology or analysis, and to understand"what is law".In this paper, the structure is divided into five parts, the first part is the analysis of the methodology of Analytical Positivist. Methodology as a way of thinking, we decided to the perspective of the legal issues.As I mentioned in the text, before Analytical Positivist the study of law seek to nature or ration, since Austin has been focusing on the study of the law of their own studies, such a study, in a sense, is the different ways of thinking, mainly manifested in the methodology. It is this methodology determines their basic position, that is the separation of the facts and the value . At the same time in this part also shows the methods that they study the basic legal issues, that is, logical methods and analytical methods. This part is not only to illustrate the method of Analytical Positivist, but also on their way to the existence of certain inheritance and development of relations, to some extent, is that they lead to the different of their basic unit and their structure .At the same time to note the method of the paperr,it is the analysis method. In this part of the structure that has played a whole and the role of this research methods or analytical framework.The second part is mainly through the basic unit of analysis of Austin, that is, orders, as well as the structural relationship between order to illustrate their theory of the structure of the legal system. Austin reduced to the legal order, an order that is the basic unit of the law, the so-called sovereignty is to express an order or a request that, if we do not abide by this request will be negative consequences, that is punishment. The order includes the power, the will and the sanctions. At the same time that Austin has two types of orders, first, the so-called law and the other is a specific order, the order is due to the specific acts that as a result of its legal order must generally refers to the general behaviour . Austin at the same time that the scope of the study of jurisprudence is indeed, not all of the laws are strict sense of the scope of its research. But he also believes that not all of it is order, for example, illustrative of the law, repealed and the lifting of the legal requirements of the law and simple nature of the legal order does not have the nature of order, but is the scope of the study of jurisprudence, because these law decision the existence of other laws and the application. At the same time he also believes that the law aboat right is an order, because the existence of rights indicates the existence of obligations. Austin's legal system there is a theory of the structural relationship between order and no-order and the relations of the punishment and the genetic, which is a form sense of the legal system, because the relation of orders is not inevitable or structural.The third part is of Kelsen'legal system theory. It is considered " the pure theory of law". Norm is the basic unit, is different from rule, because the rules easily confused with the natural law,norm is a requirement, but rule it is an expression of values .Norms is between the fact (is)and value(should), is the third area, it is the people's will by acts of things, but it is also the behavior standards. The effectiveness of norms did not come from power, but from authorization. At the same time they also believe that norm is a will, means that "should" act in a certain way, but it does not mean that those people actually need such acts, even if no such behavior, norms is also effective. Kelsen'legal system theory exists the structural linkages, the effectiveness of norm root in a higher norm, the final effectiveness root in the "basic norms.", a assumption. However, the legal system of Kelsen exist two modle of norms, dynamic norms and static norms, too much attention static norms, in particular, the self-contained, so that his theory of the legal system is actually a single structure theory of norm.The fourth part is the legal system theory of Hart. Rule is the basic unit, a positive attitude, inherent attributes. It is the inherent rules determined the existence of the obligation, the obligation to a certain extent that the acts of people understand and accept, does not mean that the forced. At the same time rules as a people's behavior is determined by the way, are not clear or fuzzy, because the language has the "means the Centre" and "open architecture", and a language of the rules to a certain extent both uncertainty, with fuzzy. Law as combination of primary and secondary . Legal system not only exsit the rules of obligation rules, but also the rules of right, these rules come from the effect of people's acceptance.The five part is Raz'legal system theory, Raz's legal system is built on the theory of Austin, kelsen and Hart. Raz consid that a complete legal system, includes the existence of the problem, identify problems, structural problems and the question of content."Law"is the basic unit, a legal system includs the law of obligations, the law of right and non- norm law.The law of obligations does not necessarily mean that sanctions. There are two types of the law of right , one is the law to create laws , and the other is to adjust the law. Non-normative laws include two categories: one category is allowed laws, and the other is a legal right, these non-normative legal presence could make the law to avoid duplication, people do not deviate from the general understanding of the law, as well as to clear interpretation of the law in different parts of the important linkages between.Raz'theory also exist two structure of links, including the creating structure and the operational structure.Through the analysis of the legal system theory, we found that the concept of legal system is a concept of epistemology or a concept of analysis, that is, through the analysis of the basic unit and structure between to better understand the law, the nature of law . Research in the development of their legal system context, we will find that the legal system theory is gradually from infancy to maturity process. The law is a command system in Austin'theory, the idea has not yet formed a system of theoretical form, but also in an embryonic stage, there has been Kelsen gradually started to mature. Kelsen is openly the first person to study legal system, and then the legal system and structure idea are more perfect in the Hart and Raz.
Keywords/Search Tags:Analytical
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